Getting a settlement in a slip and fall case

By Matt Lalande in Slip and Falls on August 29, 2021

If you’ve been injured in a slip and fall in Ontario you may be entitled to compensation depending on whether you’ve suffered damages and whether or not you can prove “liability” or fault on behalf of the property owner(s) where you fell.

Slip and falls can no doubt cause extremely serious traumatic injuries such as knee fractures, hip fractures, ankle fractures, shoulder dislocations, rotator cuff injuries, head injuries, craniofacial injuries and in worst-case scenarios, spinal cord injuries.  Although orthopedic injuries are by far the most common injuries in slip and fall accidents among both the young and elderly population, soft tissue injuries to tendons and ligaments can also occur during a slip and fall accident – particularly in the knee and ankle. Common ankle fractures that we see, in our experience, are bimalleolar and trimalleolar fractures, which involve the disruption of ligaments around the ankle joint’s fracture site.

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When serious injuries do occur, a victim could be put to major out-of-pocket costs related to pain medication, rehabilitation therapy (such as physiotherapy, chiropractic and massage therapy) as well as assistive devices, such as knee braces, canes, shoe inserts, splints, wheelchairs and other requirements.

Even worse, when a person suffers a very serious slip and fall injury, that person may not be able to return to work and if he or she does not have a decent long-term disability benefit plan in place, there may be extensive lost wages to deal with.

What to do if you’ve been involved in a slip and fall

We often tell our clients that the most important thing is to both make your own notes and have somebody take pictures immediately. If you do end up making a legal claim, you will need to prove the cause of your fall – i.e., what you slipped on.

There is no doubt that for most of and fall victims, while lying on the floor after suffering a serious injury, last thing one thinks about this to feel around for water. But, when your better, it’s important that you make notes to recollect your environment or even better, get witness information along with their recollection on how they saw you fall – preferably by getting their statement. You will be questioned on the “causation” in relation to your slip and fall and it’s important that you be as accurate as possible. Memories fade, so the best way to be as accurate as you can is by documenting your situation.

The other thing that we tell clients to do after a slip and fall accident, is to take pictures, pictures, pictures.

If you can – and if there is a witness, tell him or her to take photos. Then, once you can (or have a family member assist) attend the scene and and take photos. Look for water, debris, oils, food, whether the area is high traffic, look for wet floor signs, mats – or look and see if the site has been remediated.

For example, if you slipped and fell upon entering a department store, shopping mall or restaurant and then suffered a slip and fall, perhaps photos taken soon after your taken would reflect the fact that there were no commercial grade entrance mats that were placed down to absorb water or control dirt, debris and moisture – or that the mats were soaked and not cleaned. Also, photos immediately after the scene might depict that there were no wet floor signs to help warn potential customers and patrons that the floor was wet. Pictures tell a 1000 words.

Determining liability (fault) in a slip and fall accident

Although establishments and their lawyers will always disagree that their floor was “wet” or “dangerous”, or there was some debris or moisture on the floor because your fall, the reality is people don’t simply fall. People do not open the door, walk in a premise, wipe out and injure themselves. This is not reality. People don’t make themselves fall or “fake” falls.

In our practice, and what we have spoken about extensively at conferences, is that slip and falls occur for one of two reasons, and sometimes both. The first is that the premises where you fall could’ve been negligently maintained. The second reason was that you slipped and fell because of an issue with the floor itself.

Negligent Maintenance

Negligent maintenance simply means that the property owner simply did not take reasonable care of the property and the end result was that somebody slipped, fell and hurt themselves.

For example, a person can be seriously injures in a slip and fall if an occupier failed to maintain his or her property and/or failed to document deficiencies in relation to their maintenance, such as:

• a floor was wet because it wasn’t cleaned
• a floor wasn’t cleaned because there wasn’t enough staff
• if there was there was a communication problem amongst staff
• the staff was misinformed about where, what and when to clean
• there was nothing documented or logged in relation to inspection and cleaning
• there was nothing put forth by the occupier to prove there was a reasonable system of inspection in place
• the care of the premises was haphazard
• there were no warning signs, no mats
• there was no routine compliance with anything
• there was a disorganized system of inspection in place
• the property owner had a system with multiple “actors”
• there was a system of cleanliness that didn’t adjust to weather conditions
• there were inspection or cleaning policies – but- the occupier wasn’t compliant with its own policies

In short, In Ontario, there’s a positive and affirmative duty placed on occupiers of a property to maintain some type of “system” – which means that reasonable care (not perfect care) must be undertaken to protect visitors. When there’s a breach of these elements – liability will be found against property owners.

The floor or property wsa in a state of disrepair

At times, and unfortunately no matter how much care is placed on a property that is routine, a property itself can be highly deficient and in a state of disrepair which might contribute to a person’s fall. In cases like this, property owners will be negligent for allowing the property to remain in the state of disrepair.

For example, consider the following issues:

How is the surface composition? – such as slip resistance on tile, marble, granite, the flooring around the pool, in a vestibule, in an airport.

Dangerous surface Changes –hazardous conditions like uneven walkway surfaces, painted surfaces, recessed surfaces.

Dangerous surface conditions– such as poorly designed walkway surfaces, loose or torn carpet, broken tiles, potholes that are frozen over that create a slipping hazards.

Dangerous surface Level changes – on ramps, sloping areas, surface irregularities – that can cause a person to slip.

Dangerous surface transition changes – brick to epoxy floor sort of thing – or anything that can cause an established gait to become reckless.

Dangerous stairs and stepping surfaces – Non-uniform steps, railing issues, building code issues, or curbing that’s too high or too low.

Surface lighting issues – inadequate lighting, glare, colour contrast or dangerous visibility concerns.

Contravention of Property by-law standards – such as eavestrough drainage or ponding issues.

Human factors could also be an issue – such as demographics such as age, expected visual perception, eyesight, show type ect.

There could be many reasons why the property is deficient and if you slipped and fell because of issues with the property itself, then it’s important that you retain an experienced slip and fall lawyer who will work with engineers and experts in human factors to determine why you felt and how your fall could’ve been prevented.

Why do we slip and fall?

Most times, victims fall because the walkway surface was slippery. Ontario building codes, property standards and accessibility regulations require that a floor is reasonably slip resistant. For slip and fall lawyers, determining that a walkway surface provides sufficient traction, or insufficient friction, is complex. Typically, slip and fall lawyers retain additional experts who use tools called tribometers to measure traction or friction in order to determine whether or not the actual slip and fall experience was caused by the lack of friction on a slippery floor. There are many standards developed by many associations and tribometer makers across North America which provide scientific foundations in regards to the walkway environment, its traction requirements, illuminations, distractions and contaminants.

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In the analysis of pedestrian safety, the most important result is the measurement of “frictional interaction” (or technically – COF – coefficient of friction) between the walkway and the footwear of the victim. In short, when a person moves across a surface, there is frictional force between the shoe and the floor. A slip occurs when the coefficient of friction between the bottom of someone’s shoe on the walking surface does not provide sufficient resistance to counteract the forward forces of the shoe….which typically happens when floors are wet.

What compensation am I entitled to claim in a slip and fall accident?

Wage Loss – Assuming that fault and liability can be proved, the most critical loss an injured person could experience is no doubt wage loss. If you can’t work because you’re hurt, there will be a direct economic loss that you and your family will suffer, particularly if you do not have a long-term disability plan. There are two things to consider, the loss of earnings and the loss of earning capacity. Loss of earnings would be the money or wages your would have made if you had not been injured, while a loss of earning capacity is the loss of your full potential to make income because of the injury.

Pain and Suffering – You are entitled to also make a claim to compensate the pain and suffering you have endured (both physical and mental), the loss of quality or duration of life, the loss of interdependent relationships (the diminished likelihood to enter a permanent relationship with another person), loss of amenities and the loss of expectation of life.

Housekeeping losses – you are also entitled to claim compensation for housekeeping losses if you are no longer able to properly care for your home. Injured persons are often limited in the housekeeping and home maintenance tasks they are able to perform following an accident and will have to rely on others to perform some or all of these tasks, which may involve everything included in the general cleaning, care and upkeep of the location where the victim lives.

In most cases, this will be limited to the costs associated with the place where the injured person lived at the time of the accident, but it may also include the costs of another residence (for instance if the plaintiff was required to move because she was no longer able to climb stairs after the accident and lived on the second floor).

Future Care Expenses – You are also entitled to claim future care expenses, meaning expenses that you might now be responsible to pay that OHIP will not cover. In this circumstance, your slip and fall lawyer will need to establish the relationship between the care and the injuries sustained as well as provide  expert evidence to demonstrate that the care sought is reasonable and effective.

Have you been hurt in a slip and fall accident?

If you’ve been hurt in a slip and fall accident, call our Hamilton slip and fall lawyers today. We have extensive experience in representing people who have suffered serious injuries due to someone else’s carelessness or negligence.  Contact us 24/7, no matter where you are in Ontario by calling us at 1-844-LALANDE or local in the Hamilton/GTA/Niagara areas at 905-333-8888. Alternatively, you can email us through our website and we will get back to you promptly.

LALANDE PERSONAL INJURY LAWYERS  – HAMILTON OFFICE
1 King Street East, Suite 1705
Hamilton, On L8P 1A4
Local: 905-333-8888
Toll Free: 1-844-LALANDE